Health Care Reconciliation Would Violate Senate’s ‘Byrd Rule’

LetterFromTheCapitol brings us a post explaining that the current threat by Democrats to use reconciliation to bypass a Republican filibuster would violate the Senate’s “Byrd Rule”. Reconciliation was designed to only be used for bills dealing with the budget and nothing else.

The first use of this special procedure was in the fall of 1980, as the Democratic majority in Congress moved to reduce entitlement programs in response to candidate Ronald Reagan’s focus on the growing deficit. Throughout the 1980s and ’90s, reconciliation was used to reduce deficit projections and to enact budget enforcement mechanisms. In early 2001, with projected surpluses well into the future, it was used to return a portion of that surplus to the public by changing tax rates.

Senators of both parties have assiduously avoided using budget reconciliation as a mechanism to pass expansive social legislation that lacks bipartisan support. In 1993, Democratic leaders—including the dean of Senate procedure and an author of the original Budget Act, Robert C. Byrd— appropriately prevailed on the Clinton administration not to use reconciliation to adopt its health-care agenda. It was used to pass welfare reform in 1996, an entitlement program, but the changes had substantial bipartisan support.

In 2003, while I was serving as majority leader, Republicans used the reconciliation process to enact tax cuts. I was approached by members of my own caucus to use reconciliation to extend prescription drug coverage to millions of Medicare recipients. I resisted. The Congress considered the legislation under regular order, and the Medicare Modernization Act passed through the normal legislative procedure in 2003.

The summit’s predictable failure will be a pretext for trying to ram health legislation through the Senate by misusing “reconciliation,” which prevents filibusters. If the Senate parliamentarian rules, as he should, that most of the legislation is ineligible for enactment under reconciliation, the vice president, as Senate president, can overrule the parliamentarian. This has not happened since 1975, but liberals say desperate times require desperate measures.

Today’s desperation? Democracy’s majoritarian ethic is, liberals say, being violated by the filibuster that prevents their enacting health legislation opposed by an American majority.

GW adds telling numbers:

Liberals also say the filibuster exacerbates the Senate’s flaw as “inherently unrepresentative.” That is, the Founders — who liberals evidently believe were dolts or knaves — designed it to represent states rather than, as the House does, population.

Liberals fret: 41 senators from the 21 smallest states, with barely 10 percent of the population, could block a bill. But Matthew Franck of Radford University counters that if cloture were blocked by 41 senators from the 21 largest states, the 41 would represent 77.4 percent of the nation’s population. Anyway, senators are never so tidily sorted, so consider today’s health impasse: The 59 Democratic senators come from 36 states containing 74.9 percent of the population, while the 41 Republicans come from 27 states — a majority — containing 48.7 percent. (Thirteen states have senators from each party.)

Since there have been 50 states, Republicans have never had 60 senators. There were 60 or more Democratic senators after seven elections — 1960 (64), 1962 (66), 1964 (68), 1966 (64), 1974 (61), 1976 (62) and 2008 (60, following Arlen Specter’s discovery that he is a Democrat and the protracted Minnesota recount). But both parties have been situational ethicists regarding filibusters.

There is more, including, GW notes, that President Obama’s deficit commission requires a 14 out of 18 vote to adopt recommendations! GW adds: filibusters (a) serve a valid purpose and (b) have never prevented adoption of legislation ardently desired by the majority of the American public:

Filibusters are devices for registering intensity rather than mere numbers — government by adding machine. Besides, has a filibuster ever prevented eventual enactment of anything significant that an American majority has desired, strongly and protractedly?

There is more. In the quotes linked above my favorite is actually Chris Dodd’s, which underscores Will’s point about major legislation winning bipartisan support:

Chris Dodd 5/18/2005: “I’ve never passed a single bill worth talking about that didn’t have a lead co sponsor that was a Republican. And I don’t know of a single piece of legislation that’s ever been adopted here that didn’t have a Republican and Democrat in the lead. That’s because we need to sit down and work with each other. The rules of this institution have required that. That’s why we exist. Why have a bicameral legislative body? Why have two chambers? What were the framers thinking about 218 years ago? They understood Mr. President that there is a tyranny of the majority.

Bottom Line. The filibuster is a valuable tool of Senate rules. The House runs on majority diktat; the Senate on consent of 100. While both parties have been guilty of playing footsie with filibusters, using parliamentary sleight-of-hand to ram through the restructuring of one-sixth of the American economy is without comparable precedent. Voters do not track procedural niceties, but if ObamaCare is rammed through Democrats will answer come November.